The government yesterday claimed that the “dissent note” which was an outcome of three of a seven-member negotiating team in the Rafale deal was stolen from the defence ministry. It was pleaded in front of the Supreme Court to not take cognisance of it to order a CBI probe as this would delay procurement of fifth generation fighter jets which is said to be a necessity after recent developments.
Referring to documents cited by petitioners Prashant Bhushan, Arun Shourie and Yashwant Sinha, which have been published by two media houses, attorney general K K Venugopal said, “I am objecting as these secret documents are stolen from defence ministry, whether by present or past public servants. Investigations are going on. We will be taking criminal action.” Later, the AG clarified that the government would not take action against journalists or lawyers who used the documents.
Arguing for dismissal of the petition seeking review of the SC’s judgment giving a clean chit to the NDA government in the Rafale deal, Venugopal said, “The documents are procured through a criminal act and are punishable under Official Secrets Act. It should be dismissed on this very ground as the petitioners have not come to court with clean hands.”
However, the AG’s argument did not seem to find favour with the bench of Chief Justice Ranjan Gogoi and Justices Sanjay K Kaul and K M Joseph.
“Suppose a great crime or act of corruption is committed. Are you going to take shelter behind Official Secrets Act or national security? Even if stolen documents are cited, if it is relevant, the court can always look into it. It has been settled in a catena of judgments,” Justice Joseph said.
“If defence documents could not be looked into by the courts, then there could not have been a probe into the Bofors gun deal,” Justice K M Joseph said on Wednesday, responding to the AG’s argument that stolen Rafale deal documents should not be looked into by the Supreme Court.
CJI Ranjan Gogoi and Justice Sanjay K Kaul agreed with the broad principle. However, the CJI reworded it by saying, “We can understand you (AG) arguing that the petitioners lack bona fide because of the manner in which they have procured the documents. But so far as stating it as a law that documents obtained would remain untouchable for the court would be taking things too far.” The AG agreed with the reworded proposition and said he would adopt it and argue that the petitioners lacked bona fide.
Venugopal said defence secrets, when published, made the country’s security vulnerable, yet newspapers extracted the documents that were stolen from the ministry. “If on this very basis the SC orders CBI inquiry, it will send a bad signal to foreign countries and delay procurement of fighter jets which the Indian Air Force requires urgently,” he said.
The government does not appear to be out of the woods yet in the Rafale deal controversy. For, the bench said it would pronounce its verdict on the review petitions on March 14. “If we do not accept the AG’s plea that stolen documents cannot be looked into by the court, then we will hear fresh arguments on further course of action,” it said.
The AG argued that defence deals were never a matter of litigation in courts of foreign countries. “Can the Supreme Court direct negotiation of peace or going to war?” he asked.
Before reserving its verdict, the bench told the AG, “There is no restraint on the government from going ahead with the Rafale procurement schedule. Don’t forget that we have already dismissed the petitions.”
Bhushan charged the AG with committing contempt by attempting to intimidate petitioners with criminal prosecution for placing “incriminating documents” before the court. Bhushan then trained his guns on the Comptroller and Auditor General for succumbing to government pressure and redacting pricing details from the audit report, which was tabled in Parliament on February 13.
“This is the first instance in CAG history to have redacted pricing details from the audit report of a deal,” he said and cited similar arguments by the CBI and the government when he had produced secret documents relating to 2G scam and coal block allocation scam in the SC.